Whittaker v Child Support Registrar
[2010] FCA 43
FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar [2010] FCA 43
Citation: Whittaker v Child Support Registrar [2010] FCA 43 Parties: MARK ALAN WHITTAKER and ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431) v CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA File number(s): NSD 204 of 2008 Judge: LINDGREN J Date of judgment: 5 February 2010 Catchwords: ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No.
CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar.
EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No - s 32 applies only to evidence given in court.
TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established.
TORT – interference with contractual relations by unlawful means – person intending to depart Australia by plane to perform contract overseas – departure prohibition order made by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) was in force in respect of him – Customs officers questioned him – Australian Federal Police officers told him he could not fly – mental element of the tort in circumstances in which the respondents are public officials – whether state of mind required for this tort is different from that required for the tort of misfeasance in public office. Held: No.
Legislation: Acts Interpretation Act 1901 (Cth) ss 28A, 29
Child Support (Assessment) Act 1989 (Cth) ss 23, 30, 58, 77, 78, 79
Child Support (Registration and Collection) Act 1988 (Cth) ss 72D to 72H, 72Q, 72S, 72T, 72U, 72X, 76Constitution ss 51(xxii), 51(xxxvii), 51(xxxix), 122
Customs Act 1901 (Cth) ss 234AA(1), 234A, 234ABA(1).
Evidence Act 1995 (Cth) Act ss 32, 34, 52
Federal Court of Australia Act 1976 (Cth) s 47(3)
Migration Act 1958 (Cth) ss 165, 175
Taxation Administration Act 1953 (Cth) ss 14S, 14T, 14VChild Support (Registration and Collection) Regulations 1988 (Cth) regs 14, 15
Cases cited: Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350 cited
Aneve Pty Limited v Bank of Western Australia Limited [2005] NSWCA 441 citedAnnetts v McCann (1990) 170 CLR 596 followed
Attorney-General for the Commonwealth of Australia v Alinta Limited (2008) 233 CLR 542 cited
Attorney-General (Qld) v Francis (2008) 250 ALR 555 cited
Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443 discussed
Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226 discussed
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 followed
Grech v Featherstone (1991) 33 FCR 63 cited
Huddart, Parker and Co Proprietary Limited v Moorehead (1908) 8 CLR 330 cited
Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 citedKioa v West (1985) 159 CLR 550 followed
Lindsay-Owen v Lake [2000] NSWSC 1046 followed
Louis v Commonwealth of Australia (1987) 87 FLR 277 cited
Luton v Lessels (2002) 210 CLR 333 referred to
McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 followed
Northern Territory of Australia v Mengel (1995) 185 CLR 307 cited
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 cited
Precision Data Holdings Limited v Wills (1991) 173 CLR 167 cited
Re Ranger Uranium Mines Proprietary Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 citedSanders v Snell (1998) 196 CLR 329 applied
The Balmain New Ferry Company Limited v Robertson (1906) 4 CLR 379 cited
The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 cited
The Waterside Workers’ Federation of Australia v JW Alexander Limited (1918) 25 CLR 434 cited
Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 cited
Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381 cited
Whittaker v Child Support Registrar (2000) 106 FCR 105 cited
Whittaker v Child Support Registrar [2002] FCA 1429 cited
Whittaker v Child Support Registrar [2002] FCA 1430 cited
Whittaker v Child Support Registrar [2003] FCAFC 114Butterworths, Halsbury’s Laws of Australia, vol 26 (service 272), 45 Tort, ‘5 Intentional Interference with Trade or Business’
Date of hearing: 6, 7 August, 14, 15, 16, 17, 18 September 2009 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 356 Counsel for the Applicants: Mr P E King Solicitor for the Applicants: McKells Solicitors Counsel for the Respondents: Mr S B Lloyd SC Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 204 of 2008
BETWEEN: MARK ALAN WHITTAKER
First ApplicantROTARY KILN SERVICES (AUSTRALASIA) PTY LTD
ABN 51 128 856 431
Second ApplicantAND: CHILD SUPPORT REGISTRAR
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.The applicants pay the respondents’ costs
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 204 of 2008
BETWEEN: MARK ALAN WHITTAKER
First ApplicantROTARY KILN SERVICES (AUSTRALASIA) PTY LTD
ABN 51 128 856 431
Second ApplicantAND: CHILD SUPPORT REGISTRAR
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
LINDGREN J
DATE:
5 FEBRUARY 2010
PLACE:
SYDNEY
TABLE OF CONTENTS
para
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[1]
THE ASSESSMENT ACT, THE COLLECTION ACT AND
THE MAKING OF THE DPO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....[5]
THE FACTS IN OUTLINE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[28]
MR WHITTAKER’S ACCOUNT OF EVENTS AND HIS CREDIT........ ........ ........ ....
[53]
General........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [53] The beginning........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [58] Conversations with Customs officers on Friday 15 February 2008........ ........ ........ .... [60] Conversations with AFP officers on Friday 15 February 2008........ ........ ........ ........ .. [71] Mr Whittaker’s visit to the “Passport Office” in the CBD........ ........ ........ ........ ........ [96] Mr Whittaker’s dealings with Ms Pitt of the AGS........ ........ ........ ........ ........ ........ .... [101] Conversation with Customs officers on Saturday 16 February 2008........ ........ ........ .. [116] Conversation with AFP officers on Saturday 16 February 2008........ ........ ........ ........ [120] Specific attacks on Mr Whittaker’s credit........ ........ ........ ........ ........ ........ ........ ....... [137] CONSIDERATION OF THE PLEADED CAUSES OF ACTION........ ........ ........ ........
[177]
(a) False imprisonment of Mr Whittaker by officers of the Commonwealth
in the departure hall at the airport on 15 and 16 February 2008........ ........ ........ ........ .[177]
(b) Assault of Mr Whittaker by officers of the Commonwealth in the departure
hall on 15 and 16 February 2008........ ........ ........ ........ ........ ........ ........ ........ ........ .....[196]
(c) Trespass to Mr Whittaker’s property at the airport on 15 and 16 February 2008........
[197]
(d) Interference with contractual relations by unlawful means on 15 and 16 February 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[203]
(e) Interference with the trade or business of Rotary and/or Mr Whittaker on
15 and 16 February 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......[231]
(f) Intimidation of Mr Whittaker on 15 and 16 February 2008........ ........ ........ ........ ........
[235]
(g) Denial by the Registrar of procedural fairness to Mr Whittaker
in connection with the making of the DPO on 6 December 2006........ ........ ........ ......[236]
(i) The tip-off........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [236] (ii) Failure by Registrar to notify Mr Whittaker of making of DPO........ ........ ........ ... [262] (h) Bad faith on the part of the Registrar or absence of reasonable grounds in making the DPO on 6 December 2006
[280]
(i) Appeal to this Court under s 72Q of the Collection Act against
the making of the DPO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..[295]
(j) Challenge to the validity of Part VA of the Collection Act........ ........ ........ ........ ........
[305]
CONSIDERATION OF TWO FURTHER MATTERS........ ........ ........ ........ ........ ........ .
[328]
Objection to affidavit evidence – s 32 of the Evidence Act 1995 (Cth)........ ........ .....
[328]
Making of the DPO – absence of original DPO........ ........ ........ ........ ........ ........ ......
[344]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[356]
REASONS FOR JUDGMENT
INTRODUCTION
The first applicant, Mark Alan Whittaker (Mr Whittaker) and the second applicant, Rotary Kiln Services (Australasia) Pty Ltd (Rotary), of which Mr Whittaker is the sole director, sue the first respondent, the Child Support Registrar (Registrar), and the second respondent, the Commonwealth of Australia (Commonwealth), on causes of action arising out of two incidents that occurred at Kingsford Smith International Airport, Sydney on Friday 15 and Saturday 16 February 2008. On each occasion, Mr Whittaker was not permitted to board a Singapore Airlines flight. His intention was to travel via Singapore to Langkawi, Malaysia, and there to carry out certain work pursuant to an arrangement with Phillips Kiln Services Asia-Pacific (Phillips).
Mr Whittaker was not permitted to board the flights because of a Departure Prohibition Order (DPO) which prohibited him from departing Australia for a foreign country. The DPO was made by a delegate of the Registrar under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act).
Numerous causes of action are pleaded by the applicants in their Further Amended Statement of Claim filed on 15 May 2009 (FASOC). Rotary’s claim is, in general terms, that it had a contract with Phillips for the performance of the work in Malaysia and that in consequence of Mr Whittaker’s not being permitted to travel, Rotary had to engage another individual to perform the work that Mr Whittaker would otherwise have performed, and suffered loss as a result.
The causes of action as pleaded in the FASOC may be summarised as follows (paras 7 – 7E repeat paras 6 – 6E, but I will treat them, as the parties did, as referring to 15 February 2008 and Flight SQ 232 (paras 6-6E) and 16 February 2008 and Flight SQ 222 (paras 7-7E)):
(a)false imprisonment of Mr Whittaker by officers of the Commonwealth in the departure hall at the airport on 15 and 16 February 2008;
(b)assault of Mr Whittaker by officers of the Commonwealth in the departure hall on 15 and 16 February 2008;
(c)trespass to Mr Whittaker’s property at the airport on 15 and 16 February 2008;
(d)interference with contractual relations on 15 and 16 February 2008;
(e)interference with the trade or business of Rotary and/or Mr Whittaker on 15 and 16 February 2008;
(f)intimidation of Mr Whittaker on 15 and 16 February 2008;
(g)denial by the Registrar of procedural fairness to Mr Whittaker in connection with the making of the DPO on 6 December 2006;
(h)bad faith on the part of the Registrar or absence of reasonable grounds in making of the DPO on 6 December 2006;
(i)an appeal to this Court under s 72Q of the Collection Act against the making of the DPO; and
(j)a challenge to the validity of Part VA of the Collection Act.
THE ASSESSMENT ACT, THE COLLECTION ACT AND THE MAKING OF THE DPO
The Collection Act establishes the position of Child Support Registrar, an office that is to be filled by the General Manager of the Child Support Agency (CSA) (s 10). The expression “child support” is defined in s 4 of the Collection Act to mean financial support under the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).
The general object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents (s 4(1)). Parents are stated to have the primary duty to maintain their child (s 3(1)). Two of the principal objects of the Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and to ensure that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (s 3(1)(a) and (b)).
Section 23 of the Assessment Act provides that an application for an administrative assessment of child support is properly made if it complies with certain specified provisions. “Child support” is defined in s 5 of that Act to mean financial support under the Assessment Act. If the Registrar is satisfied that an application has been properly made, the Registrar must accept it, otherwise he or she may refuse it: s 30.
Section 58 of the Assessment Act addresses the situation in which the Registrar is unable readily to ascertain the taxable income or “supplementary amount” of a person. The section provides that in those circumstances, in making an assessment of the child support payable, the Registrar may act on the basis that the person’s taxable income or supplementary amount or both (as the case may be) for the year of income is “such amount as the Registrar considers appropriate”. I need not discuss the meaning of “supplementary amount” or a certain maximum amount to which the Registrar’s discretion is expressed to be subject.
Because of Mr Whittaker’s failure to lodge an income tax return, the Registrar was not able readily to ascertain his taxable income. The Registrar made an administrative assessment of child support with a start date of liability (SDOL) of 14 September 1994. As at 6 December 2006, the date of the DPO, the administrative assessment was based on a 2005/2006 “median” income of $25,468. Under s 58, the Registrar acted on the basis that that amount was Mr Whittaker’s taxable income.
Generally speaking, s 77 of the Assessment Act provides that when the Registrar has made an assessment of child support, the amount of the child support is payable by the liable parent to the carer. Section 78 deals with the time at which the amount is payable, and s 79 provides that an amount of child support due and payable by the liable parent to the carer entitled to child support is a debt due and payable by the liable parent to that carer and may be sued for and recovered. The expressions “liable parent” and “carer entitled to child support” are defined in s 31 of the Assessment Act. In the present case, Mr Whittaker was the liable parent and apparently his former wife and mother of the child in question was the carer entitled to child support.
The general scheme of the Collection Act allows registration of a “registrable maintenance liability” by the Registrar in a “Child Support Register” (Register) which the Act requires the Registrar to keep (s 13).
The expression “registrable maintenance liability” is defined in s 17 of the Collection Act. It suffices to say that, subject to any exclusion by regulation, a liability is a registrable maintenance liability if it arises under a child support assessment (s 17(2)).
Section 24A(1) provides that, subject to an exception not presently relevant, where the Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability in the Register.
Once the registrable maintenance liability is so registered, the amounts payable become debts due to the Commonwealth instead of to the carer (s 30) and the Commonwealth becomes responsible to collect them and to remit amounts collected to the carer. Accordingly, the carer is no longer entitled to, and may not enforce payment of, amounts payable under the liability: s 30(3).
Section 71 of the Collection Act deals with payments that are made directly to the payee (“Non-Agency Payments” or “NAPs”). It provides for the Registrar to credit the amounts of NAPs as if they had been paid to the Registrar.
Part VA of the Collection Act is headed “Departure prohibition orders”. Sections 72D to 72H within that Part are, relevantly, as follows (although I use the present tense, ss 72D and 72E have been amended and I am describing them, as I describe the other sections of both the Assessment Act and the Collection Act, as they were in December 2006, prior to the amendments):
Division 1—Registrar may make departure prohibition orders
72D Registrar may make departure prohibition orders
(1)The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability of a kind mentioned under section 17; and
(d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii)making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
(2)For the purposes of paragraph (1)(c), the Registrar must have regard to:
(a)the number of occasions on which a debt mentioned in that paragraph had not been paid on or before the day on which it became due and payable; and
(b)the number of occasions on which action has been taken to recover such debts, and the outcome of the recovery action; and
(c)the capacity of the person concerned to pay such debts; and
(d) such other matters as the Registrar considers appropriate.
(3) A departure prohibition order must be in the approved form.
72E Meaning of child support liability
For the purposes of this Part, a person has a child support liability if:
(a)the person has a registrable maintenance liability of a kind mentioned in section 17; and
(b)an amount payable under the registrable maintenance liability is a child support debt; and
(c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.
Division 2—Offence provision
72F Departure from Australia of certain child support debtors prohibited
A person must not depart from Australia for a foreign country if:
(a)a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and
(b)the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.
Maximum penalty: 60 penalty units or imprisonment for 12 months, or both.
Division 3—Administrative requirements
72G Notification requirements for departure prohibition orders
(1)This section applies if the Registrar makes a departure prohibition order in respect of a person.
(2) The Registrar must notify the person that the order has been made.
(3)The notice must be in the approved form and must be given as soon as practicable after making the order.
Note: For approved form see section 72.
(4)The Registrar must give to the Secretary of the Department of Immigration and Multicultural Affairs a copy of the order, and information likely to facilitate identification of the person, for the purposes of administering the Migration Act 1958, unless the Registrar is satisfied that the person is an Australian citizen.
(5)The Registrar must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Part, to such other persons as the Registrar considers appropriate in the circumstances, being persons prescribed by the regulations for the purposes of this subsection.
(6)The Registrar must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order.
72H Operation of departure prohibition order
(1)A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.
(2)...
Section 72I provides for revocation and variation of DPOs by the Registrar and s 72J obliges the Registrar to notify a person who applied for a revocation or variation of the Registrar’s decision on the application.
Division 4 within Part VA is headed “Departure authorisation certificates”. Section 72K within that Division provides that a person in respect of whom a DPO is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a “departure authorisation certificate” – DAC). Section 72L provides for the Registrar to issue a DAC in certain circumstances.
Mr Whittaker did not apply for a DAC.
On 6 December 2006, Glenda Scott as delegate of the Registrar made a DPO in respect of Mr Whittaker on account of a child support liability being a debt arising from a registrable maintenance liability registered under s 17 of the Collection Act. The DPO was in force on 15 and 16 February 2008.
In the way in which the applicants’ case was ultimately put, they contend that when Mr Whittaker attempted to depart Australia on 15 and 16 February 2008, he did not know that the DPO was in force in respect of him. His lack of knowledge would be relevant to the question whether he contravened s 72F of the Collection Act set out at [16] above. Mr Whittaker gave evidence that he did not receive notice from the Registrar that the DPO had been made: see s 72G(2) set out at [16] above. In this respect, the respondents rely on service by post (see [262]ff below).
Mr Whittaker’s evidence in the ultimate form that it took was that he worked it out that there must be a DPO in respect of him on the night of Saturday 16 February 2008 – after he was not permitted to fly for the second time. As will appear below, I do not accept his evidence that he did not know on 15 and 16 February 2008 that a DPO had been made in respect of him.
Section 72Q of the Collection Act provides that a person aggrieved by the making of a DPO may appeal to this Court or to the Federal Magistrates Court of Australia against the making of the DPO. Section 72S provides that the Court hearing the appeal may, in its discretion, make an order setting aside the DPO or dismiss the appeal.
Section 72T of the Collection Act provides for the making of an application to the Administrative Appeals Tribunal (AAT) for review of a decision of the Registrar under s 72I, 72L or 72M of the Collection Act (s 72M is not presently relevant).
Section 72U of the Collection Act provides, relevantly, as follows:
(1)This section applies if an authorised officer believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign country; and
(b) a departure prohibition order in respect of the person is in force; and(c)the person’s departure is not authorised by a departure authorisation certificate.
(2) The authorised officer may:
(a)take such steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the authorised officer believes on reasonable grounds the departure will take place; and
(b)require the person to answer questions or produce documents to the authorised officer for the purposes of ascertaining whether:
(i)a departure prohibition order in respect of the person is in force; and
(ii)if such an order in respect of the person is in force—whether the person’s departure is authorised by a departure authorisation certificate.
(3)A person is guilty of an offence if the person refuses or fails to answer a question or produce a document.
Maximum penalty: 30 penalty units.
It will be noted that the belief on reasonable grounds does not extend to a belief on reasonable grounds as to the element of the person’s own state of knowledge or recklessness found in s 72F (set out at [16] above). In other words, even if Mr Whittaker did not know, when attempting to depart Australia, that there was a DPO in force in respect of him, that would have nothing to do with the powers of authorised officers under s 72U.
The expression “authorised officer” is defined in s 72X to mean an officer within the meaning of the Customs Act 1901 (Cth) (Customs Act) or a member of the Australian Federal Police (AFP). Both officers of Australian Customs Service (ACS) (Customs officers or ACS officers) and AFP officers had roles to play in relation to Mr Whittaker on 15 and 16 February 2008.
Section 76 creates an entitlement in the payee of a registered maintenance liability to be paid, relevantly, amounts received by the Registrar in relation to the liability.
THE FACTS IN OUTLINE
Mr Whittaker commenced this proceeding on Monday 18 February 2008. That was the Monday following the incidents at the airport on Friday 15 and Saturday 16 February 2008. The following affidavits made by Mr Whittaker, or parts of them, were read:
18 June 2009 (affidavit of 84 paragraphs and exhibits MAW – 01 to MAW – 25)
30 July 2009 (affidavit in reply of 21 paragraphs)
4 August 2009 (affidavit in reply of 101 paragraphs)
8 September 2009 (affidavit in reply of 58 paragraphs)14 September 2009 (affidavit of 16 paragraphs).
The affidavits read on behalf of the respondents were also numerous. It is convenient to divide the deponents of them into two broad categories and to subdivide the second category. The first category consists of officers of the CSA. The second category comprises ACS and AFP officers who had a role to play in the incidents at the airport. I refer to Senior Constables Jarvis, Mangkuwerdojo and Khier as “AFP officers.” They were members of the NSW Police Force who were seconded to the AFP at the relevant time.
The deponents can be summarised as follows:
CSA officers
Kevin Richard Cahill;
David James Badke
Judith Jackson
Trent Wearne
James Cameron WinesThe two incidents at the airport
(1) Incident on Friday 15 February 2008
ACS
Jodie Ellis, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.
Tomás Maolra de Bhaldraithe, who was the supervisor on the outbound primary line.AFP
Senior Constable Nigel Stephen Allan Jarvis
Senior Constable Komran MangkuwerdojoSenior Constable Mohamad Khier
(2) Incident on Saturday 16 February 2008
ACS
Samantha Blair, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.
Dean Francis Le Miere, who was on duty as Control Room operator in the Customs Control room on a lower level at the airport.
AFP
Federal Agent Stuart Charles Lokhee
Federal Agent Lori-Anne MackayMegan Patricia Pitt also made an affidavit that was read by the respondents. Ms Pitt was the director of the Sydney office of the Australian Government Solicitor (AGS).
There is an area at the airport that has been variously called in the evidence the “departure hall” or “outbound immigration area” or “Passport Control”. Section 234AA(1) of the Customs Act provides, relevantly, that where a place is to be used by officers (defined to mean an officer of Customs) for questioning passengers embarking on an aircraft, for the purposes of the Customs Act or of any other law of the Commonwealth, a Collector or a person authorised by a Collector may cause signs to be displayed at or near the place that identify the place and state that entry into it by unauthorised persons is prohibited by the Customs Act. Such a place is referred to in the Customs Act as a “restricted area”.
Section 234A(1) of the Customs Act provides that a person must not enter into or be in a place in relation to which a sign is displayed under s 234AA(1) of that Act. Exceptions are created by subs (1A) of s 234A. These include, relevantly, a passenger embarking on an aircraft, and a class of persons that may be described as “authorised persons”.
There was evidence, which I accept, that on 15 and 16 February 2008, the departure hall was a restricted area under s 234AA of the Customs Act and that signs were displayed in relation to it on the glass entry doors, on the floor and in upright frames stating that entry into it except by travellers and authorised persons was prohibited by the Customs Act. It was not suggested that the departure hall was not a restricted area or was not identified as such by appropriately placed signs.
A Customs officer has power to direct a person to leave a restricted area if the officer reasonably believes that the person is in that place in contravention of s 234A: s 234ABA(1).
Section 8(1)(b) of the Australian Federal Police Act 1979 (Cth) (AFP Act) makes it a function of AFP officers, relevantly, to provide police services in relation to laws of the Commonwealth and the safeguarding of Commonwealth interests. However, the provision seems to assume no importance in the present case in view of the more specific provision found in s 72U of the Collection Act (set out at [25] above).
Generally speaking, passengers intending to depart from Australia by air are entitled to enter the departure hall. All being well, they will be permitted to go from there in order to access the parts of the airport from which aircraft can be boarded. In the departure hall are Customs officers who check passports and other travel documents and information. The terms “landside” and “airside” are used to describe the sides of the outbound primary line from and to which, respectively, intending passengers desire to pass.
Customs officers who work in the departure hall checking passports and relevant documents or information have the authority of “clearance officers” under the Migration Act 1958 (Cth) (Migration Act). Section 165 of that Act provides that “clearance officer” means an officer or person authorised by the Minister to perform duties for the purposes of Div 5 of Pt 2 of the Migration Act. Section 175 within that Division empowers clearance officers to require persons who are about to board, relevantly, an aircraft, to present to the officer their passports and prescribed kinds of information. In the present case Mr Whittaker handed over, on each day, his passport, boarding pass and passenger departure card.
The clearance officers inspect the documents and, at least in the case of the passport, scan it. One function of the scanning is to identify if the intending passenger is the subject of any form of restraint on travel. In the present case on both days a “do not process” alert appeared on the computer screen of the Customs officer/clearance officer in relation to Mr Whittaker. The Customs officer at the console does not know from the information available on the computer the specific reason for the alert. The Customs officer checks that the details of the person the subject of the alert match the details of the passenger. If there is a “no match” the person is permitted to travel. If there is a “match” the Customs officer refers the matter on as described below.
On 15 February 2008, Customs officer Jodie Ellis was performing passenger processing duties at a console on the outbound primary line within the departure hall. She scanned Mr Whittaker’s passport. A “do not process” alert appeared on the screen. The supervisor of the outwards primary line, called a “bravo”, was Mr De Bhaldraithe. Neither Ms Ellis nor Mr De Bhaldraithe could recall the specific events involving Mr Whittaker, although Mr De Bhaldraithe said he had a vague recollection of Mr Whittaker. Records show that Ms Ellis scanned Mr Whittaker’s passport at 11:30:32 on Friday 15 February 2008. The evidence shows that the alert would have been communicated to the Customs Control room and that Mr De Bhaldraithe was the bravo on duty to whom, in accordance with the usual practice established by the evidence, the Customs Control room would have referred the alert.
In accordance with the usual practice, Mr De Bhaldraithe would have asked Mr Whittaker to wait in the departure hall and made contact with the AFP. Three AFP officers, Senior Constables Jarvis, Mangkuwerdojo and Khier, attended at the departure hall and spoke to Mr Whittaker.
Because of the DPO, which was found to be the reason for the alert, Mr Whittaker was not permitted to board Singapore Airlines flight SQ 232 for which he had a ticket and boarding pass. His luggage was offloaded and he collected it at the Singapore Airlines office. I digress to note that the word “offloaded” is also used to refer to the process by which an intending passenger to whom an airline has given a boarding pass and whose luggage (if any) the airline has accepted, is removed from the list of intending passengers in consequence of a decision that he or she is not to be permitted to travel. The expression can therefore be used in relation to intending passengers who do not reach the stage of physically boarding the aircraft.
When he collected his luggage, Mr Whittaker booked himself on Singapore Airlines Flight SQ 222 which was scheduled to depart at 4:55 pm on the following day, Saturday 16 February 2008.
Mr Whittaker went to the Department of Immigration in the Sydney CBD to make inquiries. While there, he received telephone calls and a text message on his mobile phone from Mr Badke of the CSA. There is conflict between Mr Whittaker and Mr Badke as to the content of the telephone conversations. The conversations did not lead to a resolution of the issue concerning the DPO.
On Saturday 16 February 2009, Mr Whittaker had a conversation with Ms Pitt of the AGS in relation to the DPO (Mr Whittaker’s evidence was that he also spoke to her on the Friday night but I do not accept that he did - see below). Again, there is a difference in their versions of events. The contact between Mr Whittaker and Ms Pitt also did not lead to a resolution.
Mr Whittaker nonetheless attempted to depart on the flight for which he was booked on the Saturday. At the airport, the course of events was generally similar to that of the preceding day. Mr Whittaker presented at the departure hall with his passport, boarding pass and departure card. On this occasion the Customs officer at the console who dealt with Mr Whittaker was Samantha Blair. Unlike Ms Ellis, Ms Blair has some recollection of the events. She recalls Mr Whittaker saying that he had had an issue on the previous day. She recalls him saying words to the effect that he had a cementing business and a cementing contract in Singapore or Malaysia, that he was cutting it fine for the flight, and that if he missed the flight and lost the contract he would sue.
When Ms Blair scanned Mr Whittaker’s passport, a “do not process alert” appeared on the screen. As Mr Whittaker’s date of birth on his passport did not match that on the alert, she tried to record that it was a “no match” but the system would not let her do so (other evidence established that there was a one day discrepancy in the dates of birth shown on the alert and on the passport).
Ms Blair referred the matter to her supervisor, but could not recall who that was. When Ms Blair returned to her console, she handed Mr Whittaker’s documents back to him and told him that someone would come to speak to him shortly. She directed him where to take a seat, which was over by the crew barrier near the pylon in the departure hall.
The ACS made contact with the AFP. Federal Agents Lokhee and Mackay came and spoke to Mr Whittaker. Again, there is a conflict in the evidence as to the conversation. Mr Whittaker was again not permitted to board, his luggage was offloaded from the aircraft and he collected it from the Singapore Airlines office.
Mr Whittaker or his partner or both of them, set about arranging for a person to go to Malaysia in place of Mr Whittaker. The individual who did so was Aaron Di Giacomo of Perth. Mr Whittaker paid for Mr Di Giacomo’s airline ticket. Mr Di Giacomo undertook the work at Langkawi in place of Mr Whittaker.
On Monday 18 February 2008, Mr Whittaker commenced this proceeding. He sought urgent interlocutory relief.
Eventually on 28 February 2008, Branson J made orders, apparently by consent, staying the operation of the DPO upon Mr Whittaker’s giving certain undertakings to the Court.
On 2 March 2008 Mr Whittaker attended at the airport intending to board Singapore Airlines Flight SQ 220 to Singapore. He checked his baggage in, received a boarding pass and proceeded to the departure hall. He presented his passport, boarding pass and passenger departure card. This time, after the position was checked, he was allowed through and boarded the plane.
MR WHITTAKER’S ACCOUNT OF EVENTS AND HIS CREDIT
General
I have no doubt that Mr Whittaker’s evidence is heavily affected by what has become an emotional issue for him. It is necessary for me to discuss this because it is relevant to my assessment of his credit generally.
The daughter of Mr Whittaker’s former marriage was born on 28 February 1989 in England. Apparently, husband, wife and daughter came from England to Australia to live but the parents separated in 1991, after which the wife and daughter returned to England. Apparently they returned to Australia, when Mrs Whittaker applied under the Assessment Act for an administrative assessment of child support. As noted at [9] above, the assessment was made with an SDOL of 14 September 1994. It seems that on 9 December 1994 Mrs Whittaker applied for the child support to be collected by the CSA. Mr Whittaker’s liability was registered as a registrable maintenance liability under the Collection Act on 30 December 1994.
As I understand his position, Mr Whittaker accepts that he had a responsibility to support his daughter but asserts that he was entitled to do so and in fact did so outside the child support system established by the Assessment Act and enforceable under the Collection Act. He has a deep rooted objection to what as he sees as the “interference” by the Registrar and the officers of the CSA in the family relationship.
There is nothing controversial in [53]-[55] above. Mr Whittaker’s own counsel made reference to it in opening his client’s case (on the issue of damages). He said:
Your Honour will be aware, and no doubt this will be the subject of some criticism of the first applicant, that although the first applicant has sought over time to avoid contact with the Child Support Registrar, he and the Child Support Registrar from time to time have not had particularly good relations. For him, that has been something which has become a somewhat emotional issue. He has considered that he has met all his obligations to the child of his first marriage informally. That is, not through the formal processes adopted by the Child Support Registrar and he has a particular view as to why his former spouse has adopted the approach she has in relation to the asserted child support liability in this particular case. That however, your Honour, is not a matter for present consideration. I only mention it because it may impact upon damages.
The relevance of the above background, on which I will elaborate below, to the events of 15 and 16 February 2008 is that Mr Whittaker’s strong antipathy to the child support system goes some way to explain the numerous unsatisfactory aspects of his testimony.
The respondents attacked the credit of Mr Whittaker in particular respects which I discuss at [137]ff below. For the present, I wish to note the general features of his account of events as given in his affidavit of 18 June 2009 and some of the credit issues to which that account gives rise.
The beginning
Mr Whittaker’s negotiation of the arrangement for the performance of work at Langkawi in Malaysia was made with Glyn Cox of Phillips. Exhibit MAW-09 is a quote numbered “NSW0108” issued by Rotary to Phillips dated 13 February 2008. In para 21 of his affidavit Mr Whittaker said that following the creation and forwarding of the quote, he booked his airline tickets from Cairns (where he lived) to Sydney and from Sydney to Langkawi. Orally he corrected that evidence to say that he booked his airline tickets on 11 February 2008. Indeed, exhibit MAW-10 to his affidavit includes an invoice from Rotary to Phillips for the airfares dated 12 February 2008.
According to Mr Whittaker’s affidavit, on Friday 15 February 2008 he departed Cairns for Sydney at approximately 6.50 am, arrived at Sydney Domestic Airport at approximately 10.45 am, travelled by train to Kingsford Smith International Airport, and presented at the Singapore Airlines counter at approximately 11.10 am. There his baggage was checked in and a boarding pass was issued to him in respect of Singapore Airlines Flight SQ 232 to Singapore.
Conversations with Customs officers on Friday 15 February 2008
Mr Whittaker then presented himself at the Immigration Passport Control counter with his passport, passenger departure card and boarding pass. He said that an officer wearing a uniform with a Commonwealth badge on it requested him to hand over the documents and he did so. The evidence of the various Customs officers was that they wear a uniform when on duty marked with the word “CUSTOMS” on the front pocket of the shirt and on the front of the jacket, and that there is a badge on the shoulder of the shirt also saying “CUSTOMS”.
In his affidavit, Mr Whittaker refers to the Customs officer numerous times as “he”. It transpires that according to computer records, and I so find, the officer who dealt with Mr Whittaker on 15 February 2008 was in fact Ms Jodie Ellis. The computer records show that it was she who scanned his passport. Mr Whittaker was given the opportunity in cross-examination to agree that the officer at the console was a female but he said (twice) that the person “was definitely a male” and said that his recollection of this was “perfect”.
Ms Ellis’s evidence of the usual practice that is followed by her as a clearance officer accords with Mr Whittaker’s testimony in this respect: she does not inform an intending passenger of the reason for the ‘do not process” alert. Indeed, the evidence is that a clearance officer does not have access to that information.
Ms Ellis’s evidence is that her practice, when the details in the passport correlate with those in the alert, is to send a message to the Customs Control room which has access to those details, and that if a “match” is confirmed by the Customs Control room, it will telephone the primary line supervisor to confirm the match. The supervisor then attends at the particular console or workstation to deal with the intending passenger. Ms Ellis states that she does not volunteer information to the passenger that he or she may not be permitted to travel.
Mr Whittaker says that Ms Ellis (or, in his evidence, the male officer) requested him to wait until the AFP arrived but Ms Ellis says that she has never asked someone to wait until the AFP arrives, and that it is the supervisor, rather than she, who has always dealt with her “do not process” cases. Mr Whittaker does not mention Ms Ellis’s supervisor at all.
Mr De Bhaldraithe gave evidence that on Friday 15 February 2008 he was working as the outwards primary line “bravo”. He defined “bravo” as “a supervisor of the outwards primary line, that is, the outwards departure, Immigration”. He said that the ACS maintains a “Passenger Analysis and Clearance Evaluation” (PACE) database which stores information regarding alerts placed by different agencies and authorities in respect of individuals. Mr De Bhaldraithe checked PACE and ascertained that Mr Whittaker’s passport details were scanned into the system at 11:30:32 on Friday 15 February 2008 by Jodie Ellis (he also ascertained from PACE that Mr Whittaker’s passport was again scanned on the following day, 16 February 2008 at 16:22:52 – see below).
Mr De Bhaldraithe described his practice when the Customs Control room calls him to confirm a “match” for a “do not process” that has been triggered on the primary line. He says that he goes to the module and asks the passenger to wait at the side near the wall where someone will come to talk to him or her. Mr De Bhaldraithe says that it is not his usual practice to say who this will be, although it is possible that he may say “Officers will attend to talk to you”, indicating only that someone in an official capacity will be coming.
Mr De Bhaldraithe says that the final determination of whether a person who has triggered a “do not process” alert is allowed to travel is normally made by the AFP.
Mr De Bhaldraithe states the obvious: intending passengers want to travel and so will want to wait to have the issue of their being permitted to do so resolved. Mr Bhaldraithe stated in his affidavit:
9… The departure hall can be very busy. If there are free seats available, it is my practice to simply point out where the seats if any are landside. If all the seats are occupied by other passengers then I will arrange for a chair to be provided for the passenger to sit on while he or she is waiting. The area where the seats are is in the departure hall. I would not describe it as a confined area or a separate area within the departure hall.
10It is my usual practice, with a ‘do not process’ not to retain the passenger’s passport, boarding pass or passenger departure card. After explaining to a passenger that they can wait I normally give the passenger back their passport, boarding pass and passenger departure card. For other types of alerts there may be instructions in the alert to hold onto their documents. This is not the case for a ‘do not process’.
I accept the effect of the evidence of Ms Ellis and Mr De Bhaldraithe in preference to that of Mr Whittaker in the following respects:
· It was a female Customs officer, Jodie Ellis, who dealt with Mr Whittaker at the console, not a male Customs officer;
· Contrary to Mr Whittaker’s evidence, the Customs officer did not leave the console;
· Mr De Bhaldraithe was interposed between Ms Ellis and the AFP in dealing with Mr Whittaker – a fact that finds no place in Mr Whittaker’s account;
· Neither Ms Ellis nor Mr De Bhaldraithe requested or directed Mr Whittaker to await the arrival of the AFP or otherwise referred to the AFP.
Mr Whittaker stated (para 27):
I asked the Officer [according to Mr Whittaker’s affidavit, a reference to the officer operating the computer at the console or workstation – in the light of the above, Ms Ellis] again what the problem was. He replied “you have to wait”. At this time I became extremely concerned that I was being arrested on a mistake. He [also] said, “You must stay here. Do not move out of this area”. I understood from his words and actions that my movements into and out of the enclosed area were restrained, that I had no choice except to remain there by law, as I was subject to a direction by a Commonwealth Public Officer.
Apart from the fact that it transpires that the officer at the console was Ms Ellis, it will be appreciated that the evidence given by Ms Ellis and Mr De Bhaldraithe, while based on their practice rather than their recollection of the individual case, is quite different from that given by Mr Whittaker in the passage quoted.
Conversations with AFP officers on Friday 15 February 2008
Mr Whittaker’s account of the arrival of the AFP officers was similarly coloured. He stated (paras 28 and 29):
28.Approximately twenty minutes later the Federal Police arrived. Three or four Officers came directly to me. They walked past the security guard [this reference was admitted as Mr Whittaker’s understanding of the status of a person stationed at the entry to/exit from the departure hall] at the only exit point to the enclosed area and they nodded at each other as the officers walked through. I stood then up [sic – then stood up]. One of the officers who appeared to be the leader spoke aggressively to me and said “I am an Australian Federal Police Officer. I am directing you to sit down where you are in that chair and wait”. He then motioned for me to sit down which I did. To me it was a frightening situation. The chair was in a corner of the Immigration zone with partitions separating it from the general area. There was only one exit point which had a security guard.
29.Two of the Federal Police Officers then stood in front of me… facing towards me with their arms folded while the Officer who appeared to be the team leader spoke with the Commonwealth Passport Officers.
According to the affidavits of Senior Constables Jarvis, Mangkuwerdojo and Khier, it was those three officers who dealt with Mr Whittaker. Senior Constables Mangkuwerdojo and Khier arrived together, but Senior Constable Jarvis arrived from airside later. Senior Constable Mangkuwerdojo made notes in his notebook following the events, and the other two senior constables contributed. Senior Constable Mangkuwerdojo stated in his affidavit (para 2):
It is my practice to make file notes in my police notebook as soon as possible after an incident. It is also my practice to ask any other officers who were present during the relevant events to read my file notes and initial them if they agree that they are an accurate description of the words spoken and the events that occurred. I have read the notes at annexure A hereto and I believe them to be correct.
All three AFP officers agreed that the notes were an accurate record. All three had access to the notes in preparing their affidavits. I agree with counsel for Mr Whittaker that there are dangers in this procedure. It may make it too easy for a person to sign notes having an effect different from that of notes that the person would have made unaided by the recollections of others. Similarly, it is not possible to differentiate between the witness’s independent recollection, if any, and that which is revived by a reading of his or her own notes. I discuss this matter further at [328] ff below.
Senior Constable Mangkuwerdojo and Senior Constable Khier were working a shift together on 15 February 2008 in the AFP area in the Customs House at the airport when there was a radio broadcast from the AFP’s Australian Operations Coordination Centre (AOCC) of a PACE alert. The alert had been generated at the outbound primary line, International Terminal, Pier C. Senior Constable Mangkuwerdojo acknowledged the job and informed AOCC that he and Senior Constable Khier would attend.
Senior Constable Mangkuwerdojo stated in his affidavit (para 4):
I then accessed Police Real-time Online Management Information System (PROMIS) and read and printed the alert information. The details of an alert recorded for a departure prohibition order usually include the date the order was made, the effect of the order, the source of the power under which the order was made and the reason for the order. I took the print out of the alert with me to the primary line.
[My emphasis]While PROMIS is an AFP system, Senior Constable Mangkuwerdojo explained that both the ACS and the AFP “own” the relevant part of the PACE Alert system and have access to it. There is in evidence a photocopy of the PACE “Close Match Alert Report”, the wording of which Senior Constable Mangkuwerdojo said he read at the time or shortly after receiving the job. The report was printed by a Customs officer in the Customs Control Room at 11:31 am (the time is noted on the document). It was then uploaded to the PACE system. Senior Constable Mangkuwerdojo accessed it there and printed it out. Senior Constable Mangkuwerdojo said he threw out the copy of the document he had printed out on that day. The copy produced to the court was apparently printed out later, Senior Constable Mangkuwerdojo having “scanned the disk – the original document on to the PROMIS system”. Although the sequence of events is not entirely clear, what is clear from his evidence is that he had a document on 15 February which had been printed out and which he threw away.
The Report contained a statement to the effect that a DPO was issued on 6 December 2006 in respect of Mr Whittaker preventing him from departing Australia, pursuant to s 72D of the Collection Act; that Mr Whittaker had a child support liability and had not made arrangements satisfactory to the Registrar for the liability to be wholly “disclosed” [sic – discharged]. The report gave the CSA outwards movement contact telephone number and stated the “date of issue” of the DPO as 6 December 2006.
Senior Constable Mangkuwerdojo said that he also saw a copy of the DPO itself on the PROMIS system but that he did not print it out. According to the notes that Senior Constable Mangkuwerdojo made on page 16 of his notebook, the PACE Alert number for the job was C147897C1, the job number was A15583, and the PROMIS number was p3738272.
Senior Constables Mangkuwerdojo and Khier arrived at the primary line at about 12 noon where they spoke to the supervisor, Mr De Bhaldraithe. They approached Mr Whittaker who was seated in one of the chairs landside. The chair was against a flat wall near the entry to the departure hall and not in a corner or in a room, according to Senior Constable Mangkuwerdojo. According to the latter, he explained that there was an alert having to do with outstanding child support payments that prevented Mr Whittaker from leaving Australia. The conversation included references to identification of Mr Whittaker, such as his driver’s licence, his address in Cairns, his wife’s name, date of birth and mobile telephone number, and the number of children he had. Senior Constable Mangkuwerdojo recorded the answers given by Mr Whittaker in his police notebook. According to him, Mr Whittaker denied having any child support obligation.
Senior Constable Mangkuwerdojo went to the Customs desk to make a telephone call to the PACE alert team in view of Mr Whittaker’s denial. That team advised him to contact the Child Support Team within the CSA and gave him a telephone number for that purpose. In the meanwhile Senior Constable Khier had remained with Mr Whittaker.
Before Senior Constable Mangkuwerdojo could contact the Child Support Team, Senior Constable Jarvis, who was the most senior of the three AFP officers, arrived at the Customs desk. Senior Constable Mangkuwerdojo explained to him that Mr Whittaker had denied having a child support obligation. He also told Senior Constable Jarvis that Mr Whittaker’s date of birth on the alert did not match that on his passport. It was left to Senior Constable Jarvis to speak to the CSA Child Support Team. Senior Constable Jarvis telephoned “Mell from Child Support Hobart”. This proved to be Michelle Arnold (see [146] below). She confirmed that Mr Whittaker, the subject of the DPO, had an address in Cairns (although she declined to reveal the precise address), and when Senior Constable Jarvis read out Mr Whittaker’s passport number she confirmed that that was the passport number of the Mr Whittaker the subject of the DPO, saying words to the effect of “that’s the right one”.
Senior Constables Mangkuwerdojo and Jarvis returned to where Mr Whittaker and Senior Constable Khier were located. Senior Constable Jarvis told Mr Whittaker that he could not fly that day.
According to the affidavits of Senior Constables Jarvis and Mangkuwerdojo, the former had a conversation with Mr Whittaker in the following terms (based on the notes in Senior Constable Mangkuwerdojo’s notebook) (the versions in the affidavits and in Senior Constable Mangkuwerdojo’s notes differ in slight and unimportant respects – the following is a composite account):
SC Jarvis: You can’t fly today
Mr Whittaker: On whose authority?SC Jarvis: Child Support.
Mr Whittaker: What proof have you got?SC Jarvis: I spoke with them on the telephone.
Mr Whittaker: Do you want to speak with a person I know who had $5,000 taken from his bank account?
SC Jarvis: Have you had dealings with Child Support before?
Mr Whittaker: No, I will be suing AFP. You ring [he gave a man’s name] on … [he gave a Queensland telephone number] who was the person who had the funds withdrawn from. I am going to miss my business trip. It’s worth a couple of hundreds of thousands of dollars.
SC Jarvis: I cannot do anything about this.
Mr Whittaker: My business partner is in the lounge in Singapore waiting for me. This is bullshit.
Senior Constable Jarvis then handed Mr Whittaker his passport and boarding pass and said: “Sir, you have to leave the area now and sort these things out before making another trip.”
Senior Constable Mangkuwerdojo or Jarvis then gave the passenger departure card back to the ACS and advised the ACS officer that Mr Whittaker was not allowed to travel.
I find on the basis of the combined evidence of Senior Constables Mangkuwerdojo and Jarvis that they believed on reasonable grounds that a DPO was in force in respect of Mr Whittaker.
I accept that Senior Constable Jarvis conveyed to Mr Whittaker that it was by the authority of an order or direction of the CSA that he was not being permitted to fly, whether or not the expression “departure prohibition order” was used. The notebook bears this out. I reject Mr Whittaker’s evidence that he was not told, and had no idea of, the reason why he was not being permitted to depart (see below).
The affidavit evidence of Senior Constables Jarvis, Mangkuwerdojo and Khier is to the effect that they did not speak aggressively to Mr Whittaker. On the other hand, according to the above account of the conversation given by Senior Constables Mangkuwerdojo and Jarvis, Mr Whittaker spoke aggressively, or at least assertively, to them.
The notes written out by Senior Constable Mangkuwerdojo and signed by both Senior Constables Jarvis and Khier as being correct, are detailed and give an account of the conversation in the first person. Senior Constable Mangkuwerdojo wrote out the first page (page 16) “at the scene”; the three officers discussed the events as they walked back to the AFP office in the Customs House building at the airport. Once they arrived back, Senior Constable Mangkuwerdojo tried to put the account in chronological order (in pages 17, 18 and 19) with contributions from Senior Constables Jarvis and Khier.
I see no reason why I should not accept the notes in the notebook as a substantially accurate record of the conversation. I reject the account of the conversation given by Mr Whittaker to the extent that it differs. There is no reason why the AFP officers’ evidence that the cause of the “do not process” alert was ascertained to be a restraint imposed as a result of a child support liability and that this information was conveyed to Mr Whittaker, would be untruthful evidence. The evidence of the enquiry made of the CSA was detailed.
There is also in evidence a “Pass Alert Note” dated 15 February 2008, timed at 15:32 and entitled “Pace Alert Executed”. This note records that officers had attended at Pier C at about 12 noon. The note records that the name on the alert did not include Mr Whittaker’s second name, “Alan”, and that it recorded his date of birth as 24 April 1959 whereas his date of birth as shown in his passport was 23 April 1959. The note records that the AFP spoke to “Mell” from Child Support Hobart who confirmed Mr Whittaker’s identity based on his city of residence (Cairns) and passport number.
Another aspect of the events of Friday 15 February regarding which the evidence of Mr Whittaker and that of the Senior Constables differed concerns what happened when Mr Whittaker heard the boarding call for flight SQ 232 to Singapore. Mr Whittaker said that when his flight was called he said to the AFP officer who appeared to be in charge words to the effect of: “What is the problem? Can’t you hear, my flight is being called and unless you let me go now I will miss it” and “I have to board the flight because I am going to Malaysia for work commitments. It would cost me and my company a lot of money if I miss the flight.”
The Senior Constables do not deny that part of the conversation but their evidence is contradictory of the next part, in which, according to Mr Whittaker, after he asked what the problem was, he was told only that they were trying to find out what it was and that he was to remain seated and that if he tried to leave he would be “arrested.”
According to his affidavit, Mr Whittaker took his mobile phone out of his pocket (in oral testimony he said that it would probably have been in his laptop bag which is where he usually kept it) to call Mr Cox, the manager of Phillips, who was booked on the same flight, but one of the AFP officers said to him “turn of [sic] that phone immediately”, at which Mr Whittaker protested that he had to tell Mr Cox that he was not being allowed to board the plane. The AFP officers deny that any of them instructed Mr Whittaker not to use his mobile phone.
In para 34 of his affidavit Mr Whittaker gives an account of a conversation concerning the discrepancy of one day between his date of birth as recorded in his Queensland driver’s licence and that recorded in his passport. According to Mr Whittaker, the AFP officer who appeared to be in charge angrily inquired why there was the discrepancy and Mr Whittaker said that it was “a mistake by Queensland Transport”. However, in oral evidence Mr Whittaker corrected himself, saying that that part of the conversation did not occur on Friday 15 February, but occurred on Saturday 16 February. He also said in his affidavit that he had been aware at the time of the one day discrepancy and that he has since had the error in the records of Queensland Transport corrected.
I accept, as Mr Whittaker submits, that both the Customs and AFP officers with whom he dealt on 15 and 16 February 2008 were known by him and by them to stand in positions of officialdom or authority towards him. However, Mr Whittaker:
·desired to leave the departure hall “airside”; and
·was at all times free to leave the departure hall “landside”.
He was not physically confined. He would have it that the officers’ positions of authority had the effect of subjecting him to their control. It must be remembered, however, that any intending passenger, including Mr Whittaker, would prefer to wait until the issue that has arisen is explored and, if possible, resolved, rather than immediately leave the departure hall for the unrestricted area of the airport whence he or she had come. In effect, a passenger is “constrained” by his or her self interest to remain and speak with those in official positions. The passenger’s desire is to catch his or her flight, which, it can be assumed, is due to depart fairly soon. I infer that both in general, and in Mr Whittaker’s case in particular, that desire is strong and urgent.
There can be found in the cross-examination of the three AFP officers statements which, taken in isolation, might be relied on to support a conclusion that Mr Whittaker was being “detained” by them. For example, Senior Constable Khier agreed that Senior Constable Jarvis may well have said to Mr Whittaker “I am directing you to sit down where you are in that chair and wait” and that Mr Whittaker was not to leave until their “police work” had finished. In passing, it may be noted that Senior Constable Khier was the most junior of the three AFP officers and was not directly dealing with Mr Whittaker. Understood in the context of the whole of the testimony given by the three AFP officers and of all of the circumstances including Mr Whittaker’s desire to travel, such statements do not persuade me to think that Mr Whittaker was being restrained or detained against his will. Senior Constable Khier himself also said that if a person in the restricted area wanted to leave, he or she could do so.
I do not think that Mr Whittaker was given any reason to believe that he was being arrested or detained against his will. I accept that he was given to understand that if he wished to travel, he could not pass through the departure hall until the outstanding issue was resolved. It was not, however, reasonable for him to think, if he did think, that he could not have decided to abandon his trip and to return “landside” out of the departure hall. If Mr Whittaker believed that he was not free to leave until the questioning of him by the AFP officers was complete, this did not constitute an imprisonment of him for the purposes of the tort of false imprisonment (see [177] ff below).
Mr Whittaker’s visit to the “Passport Office” in the Sydney CBD
In paras 40-41 of his affidavit, Mr Whittaker states that after collecting his luggage at the Singapore Airlines counter, booking a flight for the following day, arranging to be collected from the airport and securing accommodation in Sydney for the Friday night, he left the airport at approximately 1:30 pm “and went immediately to the Passport Office in Sydney to attempt to find out what the problem was with [his] passport”. He said that he was served at the counter there shortly after 2:00 pm and was told that there was no problem with his passport. Mr Whittaker’s affidavit then becomes confusing. After stating (para 42) that the officer offered to contact the AFP to ascertain what the source of the problem was, his affidavit continues:
42.… The Officer called the Federal Police stationed in the building to come to the Passport Office. She said his name was Nigel Jarvis.
43.I then took a seat and waited for Federal Police Officer Nigel Jarvis to arrive. He arrived at approximately five minutes before closing time, which was to the best of my recollection 5:00 pm. Officer Jarvis then stated to me, “I made an enquiry before coming down. You have to contact the Child Support Agency to sort out the problem.” I asked him, “What problem has to be resolved?” He stated, “The information I have given you was all I know[”]. He then wrote his name and number on [a document that had been given to Mr Whittaker by the Officer at the Passport Office and which is in evidence as Exhibit MAW 12].
44.He then gave me a yellow Post-it note with Child Support Agency written on it along with two telephone numbers. He then looked at his watch and stated, “It is too late to find out now. I may not be able to find out anyway.”
This evidence is remarkable. It has Senior Constable Jarvis, who, like Senior Constables Mangkuwerdojo and Khier, gave evidence that at all relevant times he was working at the Sydney International Airport at Mascot, now attending at a “Passport Office in Sydney” to which Mr Whittaker went after leaving the airport. It has a Passport officer telling Mr Whittaker that AFP officer Jarvis was “stationed” in the Passport Office building in the City and “Federal Police Officer” Jarvis telling Mr Whittaker that he had come “down” to the Passport Office. In his affidavit Senior Constable Jarvis dealt with this evidence of Mr Whittaker’s as follows (para 18):
… I have no specific knowledge of the location of any passport office at the airport or elsewhere in Sydney, New South Wales. I have only ever been stationed at Sydney airport and never in a Passport office. The only time I spoke with Mr Whittaker was at Sydney Airport shortly after 12:00 noon on 15 February 2008 in relation to him not being allowed to fly on flight SQ232 on that day. I have never spoken to him again. I most certainly did not talk to him at a Passport office later that day as claimed in his affidavit filed 18 June 2009.
Faced with this evidence, in his affidavit of 8 September 2009 Mr Whittaker changed his account to say that it was not Senior Constable Jarvis but a different officer who spoke to him at the Passport Office in the Sydney CBD. In his oral evidence Mr Whittaker explained that that officer wrote down the name “Jarvis” as the name of the AFP officer in charge, on a piece of paper, which he handed to Mr Whittaker. Mr Whittaker said that he must have erroneously inferred that the name “Jarvis” on the piece of paper was the name of the officer who had spoken to him.
In oral testimony Mr Whittaker said that he had a recollection of the officer’s having mentioned “Stephen Jarvis” as the name of the AFP officer in charge , but in fact the correct name, and the name written on the piece of paper that is exhibit MAW 12, was “Nigel Jarvis”.
Mr Whittaker’s evidence of what transpired at the Passports Office in the Sydney CBD reflects poorly on the reliability of his evidence. It may well be that aided by Senior Constable Jarvis’s affidavit and his own cross-examination, Mr Whittaker did finally arrive at a correct account. What is particularly disturbing is his refusal to admit that his recollection of the events had been “hazy” and that he had been trying to piece things together as best he could. Indeed, he insisted that he had “quite a good recollection”. My assessment is that Mr Whittaker’s account is quite unreliable and that he did indeed change his evidence from time to time in the present respect and others, to accommodate other incontrovertible evidence. He was dismissive when the incorrectness of his own evidence was demonstrated, maintaining that “the events [were] correct” and were “the same events, really” and conceding only grudgingly a “mistake” in his original account.
Mr Whittaker’s dealings with Ms Pitt of the AGS
The next matter to be addressed is a conversation that Mr Whittaker alleges he had with Ms Pitt, the Director of the Sydney Office of the AGS, on Friday 15 February 2008. According to para 46 of his affidavit, he obtained Ms Pitt’s telephone number on that day and asked her to find out what the problem was with his passport, telling her that he had been told that it related to the CSA. He suggested to her that she might be able to get the number of Matt Miller of the CSA (apparently Mr Miller was the Registrar at the time) from the Government Directory.
Ms Pitt, on the other hand, is quite clear that she did not speak to Mr Whittaker until Saturday 16 February 2008. She concedes that he may have phoned her number on the evening of 15 February and left a message. However, she is clear that she did not access that message until around 10:00am on 16 February 2008. In cross examination, Mr Whittaker said he believed that Ms Pitt was at the number he phoned on the Friday evening, that she answered it and that they had a conversation. He said in the witness box that he told her how to get Matt Miller’s telephone number. Mr Whittaker said that Ms Pitt told him that she was going out or doing something and did not have time to speak.
There is therefore a conflict between the testimony of Mr Whittaker and that of Ms Pitt as to whether or not they conversed at all on the Friday.
Ms Pitt made notes of the message that was left on her mobile phone and which she said she accessed at 10:00 am on Saturday 16 February. According to her notes, Mr Whittaker said that he was telephoning in relation to proceedings that had to be brought that day (Saturday) in the Federal Court against the Minister for Immigration, the Minister for Justice and the Minister for Health, and he asked that she phone him back urgently as he had to leave the country that day (Saturday) at 4:00 pm. He left a mobile telephone number. In cross examination Mr Whittaker confirmed that the number recorded in Ms Pitt’s notes was indeed that of his mobile telephone.
According to Ms Pitt’s notes, she assumed that Mr Whittaker was a client of the AGS. She phoned him back at about 10.30 am. Mr Whittaker agreed that she phoned him at about that time. It then became clear to Ms Pitt that Mr Whittaker was not a client but was a potential “FC” (I infer that this means Federal Court) applicant. Ms Pitt’s notes recorded that Mr Whittaker told her that he had tried to leave Australia the preceding day, but that “Immigration” and the AFP had prevented him leaving as “he had a departure prohibition order against him”. It will be appreciated that this was at a time when, according to his case as ultimately put, Mr Whittaker did not know that a DPO was the cause of his troubles.
According to Ms Pitt’s notes, Mr Whittaker asserted that he did not have a child support debt and was not going to pay anything. He said that he would approach the Court on the Saturday and was ringing Ms Pitt about that. He said that he was not threatening her, but that he had a business to go to in Malaysia and that if he did not make the flight, the business could not go ahead and there would be a substantial loss.
Mr Whittaker denied referring to a DPO. His evidence was that all that he knew at that time was that the AFP officers had said at the very end of their conversation with him at the airport on the Friday that they thought the cause of the alert was a child support problem, and that the officer at the Passports Office on the Friday afternoon had told him that he had to ring “Child Support”. He said that that was the reason why he had telephoned Ms Pitt (again, it will be noted, avoiding contact with the CSA).
According to Ms Pitt’s notes, she replied that given that it was the weekend and that as far as she knew the AGS did not have instructions, it might be very difficult for her to get instructions. She asked if Mr Whittaker had proceedings that the AGS had handled in Sydney. He replied that he did not and that he was down from Queensland.
Ms Pitt said that she would make enquiries as to whether she could get some instructions but was not confident or optimistic that she would be able to do so on the Saturday. She said that she would get back to Mr Whittaker later that day.
According to Ms Pitt’s notes, Mr Whittaker said that he had contacted the Federal Court which had informed him that even if a Judge could be contacted for a matter like his, an ex parte application seemed inappropriate. He said that he was therefore hoping that Ms Pitt could arrange for someone to appear. She said that this depended on whether or not she could get instructions.
Ms Pitt’s notes record enquiries that she made and telephone messages that she left extending from 10:30 am to 3:59 pm (the latter was recorded at 3:00 pm but should have been 3:59 pm according to a correction made by Ms Pitt in oral evidence). One of her notes was of a message that Mr Whittaker left at 2:45 pm to the effect that he was on his way to the airport and hoped that she had had “the order” lifted so that he could leave the country. Mr Whittaker denies saying this, but I accept the reliability of Ms Pitt’s note.
At 3:59 pm, according to her notes Ms Pitt spoke to Mr Whittaker to advise him that she had not been able to progress the matter because it was the weekend and the time frame was too short. Mr Whittaker replied that she should contact Matt Miller, the head of the CSA, as he could “lift the order”. Mr Whittaker denies saying those words. Ms Pitt replied that Mr Miller would need to be briefed on the matter by CSA officers and that it was apparent that this was not possible in the time available. Mr Whittaker said that it was not her fault but that the matter would probably have to go further. She said that it would be easier to get instructions from AGS’s clients in business hours the following week and he said that he would go to “Immigration” at the airport to see if he could be let through. Ms Pitt said that she really could not do anything further that day (Saturday).
In his affidavit, Mr Whittaker states that it was while he was waiting for a Singapore Airlines employee to check if the “problem with [his] passport had been cleared”, that Ms Pitt telephoned him. He said that she told him she had not been able to find out what the problem was. Ms Pitt denies saying that. It will be recalled that her evidence was that Mr Whittaker told her what the problem was, namely, the DPO. Moreover, as noted above, her notes record that Mr Whittaker had left a message for her at about 2:45 pm that day stating that he was on his way to the airport and hoped that she had had “the order” lifted so that he could leave. In cross examination Mr Whittaker modified his evidence by saying that Ms Pitt had said that she could not “get instructions”, as if the difference between this and a statement that she had been unable to find out what Mr Whittaker’s problem was, was a distinction of no consequence.
Ms Pitt’s notes are detailed and show all the signs of having been carefully made. There is no reason to doubt their accuracy. The only suggestion that Mr Whittaker could make is that she must have been mistaken. He said: “[s]he might have assumed it was that… [s]he might have assumed I mentioned departure prohibition order”. I have no hesitation in accepting that on the Saturday at about 10:30 am and again about 2:45 pm, Mr Whittaker referred to the DPO.
In para 26 of the FASOC the applicants give particulars of their challenge to the validity of Pt VA of the Collection Act as follows:
a.Part VA of the [Collection Act] purports to authorise the [Registrar] to make an order prohibiting [Mr Whittaker] from departing Australia.
b.The [Collection Act] provides no right of review of the decision under 72D other than an appeal under section 72Q.
c.An appeal under section 72Q of the [Collection Act] does not give a Court sufficient grounds to set aside a [DPO].
The High Court has often noted the difficulty in framing an exhaustive definition of judicial power, although particular features of judicial power have been identified: see Attorney–General for the Commonwealth of Australia v Alinta Limited (2008) 233 CLR 542 (Alinta); Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-189 (Precision Data). At the core of judicial power lies the power to make a binding and authoritative adjudication as to what are the existing rights and obligations of the parties (“existing” and “pre-existing” are used interchangeably in this area of discourse): see The Waterside Workers’ Federation of Australia v JW Alexander Limited (1918) 25 CLR 434 at 463 (Isaacs and Rich JJ); The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 at 396 (Windeyer J); Re Ranger Uranium Mines Proprietary Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 at 665-666; Huddart, Parker and Co Proprietary Limited v Moorehead (1908) 8 CLR 330 at 357; Alinta at [152] (Crennan and Kiefel JJ); Luton v Lessels at [22] (Gleeson CJ); [76] (Gaudron & Hayne JJ); [126] (Kirby J); [189] (Callinan J – “Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones?”).
In Luton v Lessels, Gleeson CJ said that the exercise by the Registrar of the powers referred to in ss 31(2), 36, 37 and Pt 6A of the Assessment Act did not involve the exercise of judicial power because it did not involve a determination of pre-existing rights and obligations but the creation of new ones for the future. In relation to the Collection Act, in particular, the Chief Justice said that the registration of the child support liability did not involve a binding and conclusive determination of existing rights and liabilities. Of immediate pertinence, the Chief Justice also stated (at [27]):
The Registrar is involved in various ways in the collection and recovery mechanisms. These mechanisms include garnishment of wages and salaries. These functions do not involve the exercise by the Registrar of judicial power [citing Re Registrar, Social Security Appeals Tribunal; Ex parte Townsend (1995) 69 ALJR 647 at 650; 130 ALR 163 at 167, per Toohey J].
Justices Gaudron and Hayne discussed the challenge on the ground of judicial power at [62]-[78], but chiefly in respect of the Assessment Act.
Justice McHugh agreed with Gleeson CJ.
In separate judgments, Kirby J and Callinan J came to the same conclusion. One matter noted by Kirby J (at [129]) and Callinan J (at [199]) (and see also Gaudron and Hayne JJ at [67]) was that the scheme did not provide for enforcement of assessments by the Registrar; cf enforcement by a court’s own officials, bailiffs and sheriffs acting under specific court orders authorising such curial processes as forfeiture, seizure, arrest, execution and sale.
Certain features of the Collection Act combine to show that the making of a DPO is an administrative act.
First, by reason of the DPO, the person subject to it becomes subject to a new obligation, not suggested by any existing rights or obligations, not to depart from Australia without a DAC: see s 72F. The Registrar’s making of the DPO is the factum which enlivens the prohibition created by s 72F.
Second, it is true that the Registrar is required to be satisfied that the person has a child support liability (s 72D(1)(a)), but the fact that a decision maker must form an opinion as to the existence of such a liability as a step in arriving at the ultimate conclusion on which to base his or her order regulating the future rights and obligations of the person, does not mean that the decision-maker determines existing rights and obligations; cf Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350 at [28] (Albarran); and see [321] below.
Third, under s 72D the Registrar may take the initiative and is not required to take a decision upon the application of another person.
Fourth, the Registrar makes a DPO as part of a wide ranging scheme, the principal objects of which are to ensure (see s 3 of the Collection Act):
·that children receive financial support from their parents;
·that parents pay on a regular and timely basis the periodic amounts payable by them towards the maintenance of their children; and
·that Australia gives effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
Fifth, a DPO is made in the interests of the child or children and in the public interest, not in the interests of one person claiming to have rights against a person said to be subject to a corresponding obligation.
Sixth, a DPO is not enforceable upon the making of it by the familiar curial process of execution and there are no sanctions or punitive consequences that operate upon the making of it. Thus, there is no final penalty imposed upon the person simply because the Registrar has made a DPO. In making a DPO, the Registrar is not deciding whether a person has contravened a provision of the Act and is not punishing a contravention.
Seventh, it is for the Court, in the independent exercise of judicial power, to determine whether the person has committed any of the following offences provided for in Pt VA of the Collection Act. A person who knowingly or recklessly contravenes a DPO commits an offence that attracts a maximum penalty of sixty penalty units, imprisonment for twelve months or both (s 72F). If an “authorised officer” requires a person to answer questions or produce documents for a specified purpose and the person, subject to one exception, fails to do so, the person is guilty of an offence and is punishable by a maximum fine of thirty penalty units: s 72U(3) and (4). If the person knowingly makes a false or misleading statement in response to such a request, the person commits an offence attracting a penalty of thirty penalty units or imprisonment for six months or both: s 72U(5).
Eighth, the fact that the making of a DPO may have a punitive or deleterious effect in the sense of inflicting hardship or detriment, does not make it an exercise of judicial power: Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 (special leave to appeal to the High Court was refused: see [2006] HCATrans 420). In that case a Full Court of this Court held that the power given to the Australian Prudential Regulation Authority (APRA) to disqualify a person from acting as a director or senior manager of a general insurer, or holder of certain other positions, if satisfied that the person was not a fit and proper person was not a judicial power. For similar cases, see Albarran; Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381.
Ninth, decisions by the Registrar under Part VA of the Collection Act are appealable under s 72Q; are open to direct challenge in proceedings under s 75(v) of the Constitution; and decisions under ss 72I, 72L and 72M are subject to review in the AAT: see s 72T of the Collection Act.
Tenth, in making a DPO the Registrar is required to take into account policy considerations. Under s 72D(1) the Registrar must not make a DPO unless he or she reasonably believes that it is “desirable” to do so for the purpose of ensuring that a person is prevented from departing from Australia without having made satisfactory arrangements to discharge the person’s child support liability. There are other provisions within Part VA that invoke such concepts as “desirable” and detriment to Australia’s interests in connection with decision-making by the Registrar: see ss 72I(3), 72L(3). One of the objects of the Act that the Registrar is entitled to take into account when deciding whether to make a DPO is the objective that children receive appropriate support from their parents; another is that Australia meets its international obligations in relation to maintenance obligations arising from family relationship and parentage. Such policy considerations must be balanced with other circumstances – a task ill-suited to the judicial process. In the same context in Precision Data at 191, the High Court stated:
…where … the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal … is entrusted with the exercise of judicial power.
In my opinion, Part VA in general, and s 72D in particular, is not invalid on account of a purported vesting in the Registrar of the judicial power of the Commonwealth.
I note that the applicants make the following additional submission which seems intended to go to the validity of Part VA:
The principal question is whether Part VA achieves a purpose which is proportional or reasonably capable of being seen as reasonably necessary for the purposes of debt recovery, absent the obtaining of a judgment…
This extract occurs in para 11 of the Applicants’ written submissions dated 13 August 2009 headed “Constitutional issues”.
I find it difficult to understand the submission. It seems to assume that “debt recovery” is a head of power of the Commonwealth Parliament by reference to which Part VA is to be supported. There is no such head of power. Heads of legislative power that support Part VA are to be found in ss 51(xxii), 51(xxxvii), 51(xxxix) and 122 of the Constitution.
In the alternative, the submission quoted may be seen as a non-justiciable attack upon an aspect of the policy underlying Part VA.
CONSIDERATION OF TWO FURTHER MATTERS
Objection to affidavit evidence – s 32 of the Evidence Act 1995 (Cth)
On the hearing, counsel for the applicants objected to the reading of certain affidavits on the ground that in making them, the deponents had used documents to revive their memory without the leave of the Court, contrary, so it was said, to s 32 of the Evidence Act 1995 (Cth) (Evidence Act). I ruled that the material was admissible subject, of course, to the question of the weight to be accorded to it, and said that I would publish reasons for that ruling. To that end, I invited counsel to make written submissions refining and elaborating on the oral submissions that they made at the time. They did so.
The affidavits in question were those of:
1. Nigel Jarvis made on 20 July 2009
2. Mohamad Khier made on 22 July 2009
3. Komran Mangkuwerdojo made on 14 July 2009
4. Stuart Lokhee made on 16 July 2009
5. Lori-Anne Mackay made on 17 July 2009
6. Megan Pitt made on 15 July
Each affidavit followed a generally similar form. The deponent stated that in preparing the affidavit he or she had refreshed his or her memory from a document, a copy of which was attached to the affidavit (Federal Agent Mackay stated that a copy of the notes to which she had referred was annexed to the affidavit of Federal Agent Lokhee). For example, the affidavit of Federal Agent Lokhee stated:
2.Prior to the preparation of this affidavit, in order to refresh my memory of relevant events, I have consulted the notes made in the Police Real-time Online Management Information System (PROMIS) on 16 February 2008 by the AFP Operations Coordination Centre (AOCC) and Federal Agent Lori Mackay (FA Mackay). A copy of these notes are [sic] annexed hereto and marked with the letter “A” ...
3.I have also consulted the notes I made in my notebook. A copy of these notes is annexed hereto and marked with the letter “B” ...
In the case of each affidavit, the deponent did not attempt to disclose the extent of his or her recollection of the events deposed to, unaided by the documents.
In each case the objection was to all of the material in the affidavit that was the subject matter of the document, and that related to the events of 15 or 16 February as relevant to the witness.
The objections were founded on s 32 of the Evidence Act, which, with s 34 of that Act, provides as follows:
32 Attempts to revive memory in court
(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2)Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a)whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b)whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i)was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3)If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4)The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. [My emphasis]
34Attempts to revive memory out of court
(1)The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
(2)The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
[My emphasis]
Counsel for the applicants relied on the outright prohibition expressed in s 32, absent the leave of the Court.
The parts of s 32 that I have emphasised strongly suggest that the section’s concern is confined to the giving of oral evidence in Court. That this is so is reinforced by the contrast between the heading and subject matter of s 32 and those of s 34. While the section headings do not form part of the Evidence Act (see s 13(3) of the AI Act) they constitute extrinsic material that may be taken into account to resolve any ambiguity: s 15AB of the AI Act.
The dichotomy between refreshing memory in court and out of court reflects the Australian Law Reform Commission’s Report on Evidence: see Law Reform Commission, Evidence, Report No 26 (Interim) (1985) vol 1, paras 286-289, 614-616, and vol 2, cll 29 and 30 of the proposed Bill; and Law Reform Commission, Evidence, Report No 38 (1987) para 111(e), (f).
Section 52 of the Evidence Act, which is the first section in Pt 2.3, together with its heading, is as follows:
Adducing of other evidence not affected
This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.
Chapter 2 of the Evidence Act is headed “Adducing evidence” and Pt 2.1 “Witnesses” and Pt 2.2 “Documents”. Neither the making nor the reading of an affidavit in court is a form of the adducing of evidence that is dealt with in these Parts. The reading of an affidavit in court is not, for example, the adducing of evidence of the contents of a document in question for the purposes of ss 47 and 48 of the Evidence Act. The Evidence Act does not apply to the reading of an affidavit in court, either because that Act is not a code or because s 52 expressly allows for the possibility of the adducing of evidence by the reading of affidavits – a process which is not “witnesses giving evidence or documents being tendered in evidence”: see Aneve Pty Limited v Bank of Western Australia Limited [2005] NSWCA 441 (Aneve) at [70] per Hodgson JA with whom Santow and Bryson JJA agreed.
In the present proceeding directions were made for the filing and service of affidavits of the evidence to be given at the trial. Implicitly, if not expressly, this was a direction or allowance for proof by affidavit at the trial as permitted by s 47(3) of the Federal Court of Australia Act 1976 (Cth). The direction or allowance was not subject to any condition and therefore contemplated the preparation and reading of affidavits in accordance with the usual practice.
I respectfully agree with the statement made by Hodgson CJ in Eq in Lindsay-Owen v Lake [2000] NSWSC 1046 (at [3]):
I would understand it to be the normal practice for affidavits and witness statements to be prepared in a process in which the witness is referred to and prompted by all available documents. I do not understand there to be any rule of law or professional ethics to the contrary. As I have said, s.32 does not appear to deal in any way with that process, because it only applies to what can happen in the course of a witness actually giving evidence.
In Aneve at [71] Hodgson JA remarked that the Evidence Act, like the common law, generally requires oral evidence in chief to be given in response to non-leading questions.
In the course of case management, where it becomes clear that there will be conflicting accounts of a conversation or other event, the Judge may think it desirable to direct that the evidence of the witnesses on that matter be given orally rather than by affidavit: see Federal Civil Litigation Precedents (LexisNexis Butterworths as at September 2009) at [38,010]; and Aneve at [71].
In the present case, the affidavits had been made and the deponents’ memories already refreshed out of court before the objection was taken. The documents from which memory had been refreshed had been made available to the other party, copies having been annexed to the affidavits, and so the purpose of s 34 of the Evidence Act had been satisfied.
It sufficed as the ground for disallowing the objection in the way in which the objection was put, that s 32 simply had no application.
At a directions hearing, various considerations may be relevant to the decision whether to permit evidence to be given on the final hearing by affidavit or to require that it be given orally. Those considerations include the nature of the evidence; whether the case is one of conflict between witnesses or simply of one party wishing to test the extent of the independent recollection of a witness as a factor going to weight; whether the witness’s memory has already been refreshed from the document or documents; whether the witness occupied an official position and the event was one of many of which the witness cannot reasonably be expected to have an independent recollection (see the evidence of Federal Agent Mackay referred to at [170] above); and the time lapse between the event and the likely date of trial.
Making of the DPO – absence of original DPO
In his written submissions counsel for applicants attacks the procedure that was followed by which the DPO is said to have been made. The end point of the submission is that the DPO was “made without authority or not at all” (para 14).
Counsel elaborated on this submission orally. He asserted that the evidence of Mr Wearne showed, or I should infer, that:
·“there [was] no original departure prohibition order on the file or at all”;
·the DPO, such as it was, was in a computer system at the CSA and had been created there by a piecing together of a template computerised form of DPO and a scanned signature of the Registrar’s delegate, Glenda Scott; and
·Mr Wearne or his superior officer, Mr Tanner, without authority, combined electronically the scanned signature and the template to enable a form of DPO to be printed out, a copy of which is annexure “D” to Mr Wearne’s affidavit.
The submission is a surprising one. Annexure D to Mr Wearne’s affidavit was a document that Mr Wearne deposed was a copy of the DPO that Ms Scott had signed. It purported to bear the signature “G Scott” above the words “Delegate of the Registrar of the Child Support Agency”. It bore in handwriting the date “6/12/06”.
The present attack on the validity of the DPO was not pleaded, and cannot be seen as a further aspect of any ground of attack that was pleaded, such as a failure to accord natural justice, a failure to serve notice of the making of the DPO, or bad faith.
Subsection (3) of s 72D provides that a DPO must be in the approved form, and s 72X defines “approved form” to mean a form approved by the Registrar for the purposes of the provision in which the expression appears. It is not suggested or sought to be proved that the form of DPO annexed to Mr Wearne’s affidavit was not, in terms of its content, in a form approved by the Registrar for the purposes of s 72D(3).Rather, counsel for Mr Whittaker submits that the DPO “could not have been made in the approved form” because it was a “scissors and paste job”.
I do not see why an electronic form of a DPO cannot manifest the approved form. The approved form is a reference to content and setting out, not physical manifestation. Subsections (4) and (5) of s 72G (set out at [16] above) provide that the Registrar must give to various persons “a copy of the [DPO]”. Let it be assumed that the “original” is in computerised form only. I do not see why a print out from the computer would not satisfy the word “copy” in these subsections.
Counsel’s submission turns on the evidence of Mr Wearne. As noted earlier, since 6 November 2006 he had worked as a member of the CSA DPO Team in Perth, having worked for the CSA since 14 October 2004. He was allocated Mr Whittaker’s case on 5 December 2006. Paragraphs 12 and 13 of his affidavit are as follows:
12.My recollection is that, on 6 December 2006, once the delegate had made the DPO, she contacted me by phone to advise that the DPO for Mr Whittaker had been made and was ready for collection. I made a photocopy of the DPO that the delegate had signed. Annexed hereto and marked with the letter “D” is a copy of the DPO.
13.I placed the original DPO and DPO Submission (annexure C) for Mr Whittaker signed by the delegate were [sic] in a folder belonging to the delegate’s Executive Assistant.
Apparently the word “were” was included erroneously.
Counsel for the applicants submits that I should not accept paras 12 and 13 in the light of the cross-examination of Mr Wearne. Counsel submits that the answers that Mr Wearne gave in cross-examination show that the “order” was put together according to a template within the CUBA system (which Mr Wearne described as “the operating system that stores all the files”) and that either Mr Wearne or his superior officer, Sean Tanner, Service Manager in the DPO area in Perth, both of whom had access to the scanned signature of Ms Scott, entered the filled in template and scanned signature into CUBA.
In cross-examination, Mr Wearne said that it was incorrect to say that the DPO was made only in electronic form and was not in fact signed by the purported signatory. He said that he had with him in the witness box (in Perth – he testified by video) “a copy of the Original Departure Prohibition order”. Later he said that he also had with him in the witness box a copy of his “Submission [to Ms Scott] for Approval to issue a Departure Prohibition Order – under the CSR&C Act, Section 72D”, which he said he made on 6 December 2006, and a copy of the DPO notice, being a scanned copy of the original that was signed by Ms Scott and dated 6 December 2006. No doubt this last reference was to the letter of that date from Ms Scott to Mr Whittaker advising him that Ms Scott had issued a DPO and enclosing a copy, a copy of which letter was Annexure E to Mr Wearne’s affidavit. Mr Wearne described the original DPO that he said he had with him in the witness box as being “signed by Glenda Scott who was the Registrar at the time.” It should be noted that when this document was produced, apparently it transpired that it was a copy of annexure D to Mr Wearne’s affidavit.
In the light of Mr Wearne’s evidence, I have great difficulty in finding any force in counsel’s submission.
I note in passing that reg 13 of the Regulations provides as follows:
(1)A certificate, notice or other document bearing the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Registrar or a delegate of the Registrar in place of that person’s signature must, unless it is proved that the document was issued without authority, be taken to have been duly signed by that person.
(2)Judicial notice must be taken of the names and signatures of the persons who are, or were at any time, the Registrar or a delegate of the Registrar.
The copy of the signature “G Scott” appears to be a facsimile of the signature of Glenda Scott, a delegate of the Registrar. I am not sure that counsel makes a submission that needs to be answered by reg 13, but it is desirable that that regulation be noted.
I accept paras 12 and 13 of Mr Wearne’s affidavit as truthful and reliable evidence. His evidence in those paragraphs and in cross-examination is that there was and is an original DPO in the form of Annexure D to his affidavit which Ms Scott personally signed. I find that there was.
CONCLUSION
For the above reasons the proceeding will be dismissed with costs.
I certify that the preceding three hundred and fifty-six (356) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren Associate:
Dated: 5 February 2010
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